Title: “Freedom of expression constitutes one of the essential foundations of …a [democratic]society…[It]is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population.” Handyside v United Kingdom Essay on Freedom of Expression The case of Handyside v United Kingdom (1979) is a prime example of the competing issues faced by the Courts when deciding whether or not to allow an individual to freely exercise his freedom of expression, or to permit the laws of the land to curtail the same. Any discourse about freedom of expression however, must first include a brief insight into the history of this right, which is a cornerstone of a democratic society. In the English constitutional system, the laws are passed by Parliament, which is regarded as supreme[i]. Despite the importance with which the fundamental right to freedom of expression is revered in the UK, the Legislator has had to act to occasionally curtail this right to ensure the just and fair administration of society. Freedom of expression encompasses more than just oral expression. It has been defined as: ‘….this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.[ii] In the British constitutional system, a person is free to do or say as he/she pleases unless otherwise restricted by law. Sir William Blackstone, who was a staunch advocate of an individual’s fundamental rights, and wrote and lectured extensively on the subject in the mid-eighteenth century, stated that: ‘This liberty, rightly understood consists in power of doing whatever the laws permit[iii]”. It is said that the opinions of Sir William Blackstone carried such sway in jurisprudential circles that they were even felt on the laws and the Constitution of the United States of America[iv]. For instance, documents such as the Declaration of Independence in 1776 and the ‘Bill of Rights’ in 1791 enshrined, inter alia, fundamental rights such as freedom of speech, religion, peaceful assembly, and that one should not be deprived of one’s life, liberty or property without due process of law’.[v] A more recent example of the above-mentioned rights can be found in the Universal Declaration of Human Rights[vi], and even more recently in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), which the UK is a signatory to. Some would say that the impact of the UK’s decision to subscribe to the ECHR, which consequently hands over supervisory jurisdiction to the Strasbourg Court, called into question the fundamental and long standing doctrine of Parliamentary Supremacy. Whilst this may or may not be the case, in English constitutional system, Parliament is Supreme, and can, in theory, decide to pass legislation which annuls the ECHR if it so chooses. Sir William Blackstone in the Commentaries on the Laws of England, Vol 1 describes the UK constitutional system as follows: “..the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior on earth..”[vii]. This statement expounds the notion of Parliamentary Supremacy in the English constitutional system. Whilst we do not have a written constitution as such, we do have certain statutes and charters purporting to perform similar functions. The most salient of which are as follows:
The aforementioned are not statues per se, but are documents embodying the monarch’s acceptance of certain ‘demands by Parliament and its people’. Albeit these documents are not statutes, they do have statutory force, but do not essentially concern the topic under discussion; the freedom of expression. As briefly highlighted above, the constitutional laws of Britain are used in order to restrict liberties that are deemed not to be conducive for public good or the society at large. Such liberties can, and will, only be curtailed to achieve a legitimate aim to ensure the due and just administration of the whole country. It ought to be borne in mind however, that such limitations can only be enforced by law and not arbitrary power. That said, there is a constitutional right to the freedom of expression in England: see Brown v. Cassell & Co. Ltd[viii]. Whilst this is the case, as a signatory to the ECHR, the UK is also obliged to comply with the ECHR, which was incorporated into domestic law with introduction of the Human Rights Act 1998.[ix] It is fair to say that the incorporation of the ECHR into UK domestic law has effectively reinforced a UK citizen’s right to freedom of expression. The extent to how this translates in practice can be illustrated in the case of: Handyside v United Kingdom[x]. At paragraph 49 of its judgment the court said: “The court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’. freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man…. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.” The above case was a prime example of a set of circumstances where the UK Government deemed it necessary to curtail an individual’s, Mr Handyside’s, right to freedom of expression. The case involved the publication and distribution of material that was ruled to be contrary to the Obscene Publications Act 1959.[xi] Whilst both the Strasbourg Court and the UK Government undoubtedly hold the freedom of expression in high regard, the appeal was overwhelmingly rejected by the Court; the judges agreeing by majority of 13 to 1 that the UK Government’s laws restricting Mr Handyside’s freedom of expression were legally sound. Pursuant to Article 10 of the ECHR: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The above-mentioned Article highlights that, whilst being a fundamental right, the right to freedom of expression is a qualified right by virtue of Article 10 (2), and not absolute. Therefore, when faced with a case of this nature, the Courts are required to undertake the arduous task of attempting to strike a fair and proportionate balance between the freedom of expression on the one side, and curtailing those rights in accordance with Article10 (2) of the ECHR on the other. For instance, a notable case, which was heard in the House of Lords, was the case of Naomi Campbell (Appellant) v MGN Limited (Respondent)[xii], which, as noted by Lord Nichols of Birkenhead (at paragraph 12) concerned: ‘The familiar competition between freedom of expression and respect for individual privacy. Both are vitally important rights. Neither has precedence over the other.’ Following much deliberation, the House allowed the appeal. Lord Carswell, at paragraph 171, saying: ‘I would accordingly hold that the publication of the third, fourth and fifth elements in the article constituted an infringement of the appellant’s right to privacy that cannot be justified and that she is entitled to a remedy. I would allow the appeal and restore the judge’s order.’ In the not too dissimilar case of Reynolds v. Times Newspaper Ltd and Other[xiii], the House of Lords had to decide between the following two fundamental rights: freedom of expression and the protection of one’s reputation. At paragraph 32, Lord Nichols of Birkenhead, stated: ‘..any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.’ The House, by a 3 – 2 majority dismissed the appeal. This clearly illustrates the complex and often fine balance that has to be struck between the competing issues in such cases. That said, when faced with a more serious issue, for instance national security, the Lords have illustrated that they will not refrain from curtailing the right to freedom of expression if needs must. In the case of Shayler, R.v [xiv]. Lord Bingham of Cornhill summarized (at paragraph 24) the issues to be decided as follows: ‘It is on the question of necessity, pressing social need and proportionality that the real issue between the parties arises’. He further states (at paragraph 26): ‘The acid test is whether, in all the circumstances, the interference with the individual’s convention right is prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve…..The Official Secrets Act 1989, as it applies to the appellant, must be considered in that context.’ In this case, their Lordships unanimously ruled that Mr Shayler’s right to freedom of expression had to be curtailed as the: ‘ECHR allows restrictions to be imposed upon the right of freedom of expression if, but only if, the restriction is prescribed by law and is necessary in a democratic society in the interests of national security..’. (at paragraph 40) It was found in the Shayler case that where the issue of national security was at stake, the freedom of expression was just too high a price to pay. It can be garnered from the above judgments that the Courts have struggled with the competing issues of freedom of expression on one side and the equally valid and opposing issues on the other. In seeking to strike a proportionate balance between the two, the Courts have, in general, endeavored to safeguard the right to freedom of expression, to ensure it remains ‘..one of the essential foundations [in]. society..’. Only when faced with the countervailing issues that just cannot be reconciled if society is to be allowed a margin of appreciation in prescribing suitable laws, to ensure that its interests are protected, is when we find the legislature, and ultimately the courts, ruling that the curtailment of this right ought to be enforced. This illustrates that whilst in our constitutional establishment, we enjoy unparallel liberties and freedoms, particularly in relation to the freedom of expression. This fundamental right ought not to be, and is not, permitted without the individual’s need to act with some degree of consideration and responsibility for our fellow citizens, to ensure that our freedom of expression does not cross the line of what may ‘offend, shock or disturb…’. As pointed out by Sir William Blackstone, the constitutional make-up of the UK is one which entrusts its citizens with the liberty to act with decorum in society. This is the liberty to bear the personal responsibility of striking a fair balance between freedom of expression on one side, and the parameters which are prescribed by law on the other, rendering the expression unlawful. Where an individual over steps this mark, the Courts, as illustrated, will not hesitate to rule in favour of limiting or censoring the freedom of expression, by applying and interpreting the law in a manner that achieves the desired outcome of striking a proportionate balance between the competing factors. Article 10 (2) was drafted accordingly to, when necessary, allow member states to restrict the freedom of expression of those who fail to act in a conscientious and disciplined manner. That said, the incorporation of the ECHR into domestic law has reinforced the right to freedom of expression. This is a fundamental right that the Courts have proved that they will endeavour to safeguard as vehemently as they possess the power to do so. It is a right that all citizens of democratic countries, the UK legislature, members of the judiciary and those of the Strasbourg Court, hold in high regard. As noted, at paragraph 52 of its judgment in Vogt v Germany (1995) 21 EHRR 205, the court: ,”…….reiterates the basic principles laid down in its judgments concerning article 10: “(1) freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to article 10(2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” Legislation and case law clearly suggest that the freedom of expression is valued highly, and is viewed as a fundamental right that ought not to be tampered with lightly. However, the case law, in both the UK courts and that of Strasbourg, has evidenced that when faced with a case of this nature, the issues are closely scrutinized to ensure that the right balance is struck for the greater good of democracy. That being the case, the Judges have demonstrated that they are best placed and equipped to determine when it is “necessary” to restrict the fundamental right to freedom of expression, if it is deemed to be impervious to the customs and laws of the land. Such a judgment is not made lightly however, as noted by Lord Bingham of Cornhill in the Shayler case (at paragraph 23): ‘It is plain from the language of article 10(2), and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with article 10(2) only if it is prescribed by law, is directed to one or more of the objectives specified in the article and is shown by the state concerned to be necessary in a democratic society. “Necessary” has been strongly interpreted: it is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”.[xv] GLOBAL WORD COUNT: 2557 Bibliography Text Books: Munro, Studies in Constitutional and Administrative Law, London, Butterworth’s D. Yardley, Constitutional and Administrative Law, 8th Edition, Butterworth’s Articles: Sir W. Blackstone, The Commentaries of the Laws of England, Vol. 1 (1765-1769) UK Legislation: Human Rights Act 1998 UK Case Law: Campbell (Appellant) v MGN Limited (Respondent)  UKHL 22 Reynolds v. Times Newspaper Ltd and Other  UKHL 45,  4 ALL ER 609  3 WLR 1010 (28th October, 1999) Shayler, R.v  UKHL 11 (21st March, 2002) Debnath, R. v  EWCA Crim 3472 (02 December 2005) A v B & C  EWCA Civ 337 (11th March, 2002) Strasbourg Case Law: Lindon, Otchakovsky-Laurens and July v. France – 21279/02  ECHR 836 (22 October 2007) Case of Handyside v The United Kingdom (Application no. 5493/72) (7th December 1976) Alithia Publishing Company Ltd – 17550/03  ECHR 420 (Application no. 17550/03) (22 May 2008) International/European Instruments: European Convention on Human Rights and the Protection of Fundamental Freedoms (1950) International Covenant on Civil and Political Rights (1966) Internet Sources: www.unhcr.ch/html/menu3/b/a_ccpr.htm https://www.lonang.com/exlibris/blackstone/ 1
[i] This is termed the Doctrine of Parliamentary Supremacy. [ii] See Article 19 (2) of the international Covenant on Civil and Political Rights (1996).Entered into force on 23 March 1976. [iii] See, Sir William Blackstone, Commentaries on the Laws of England, Vol 1, Sect. 1 (1765 -1769) [iv] See H. G.Hanbury The Vinerian Chair and Legal Education (1958) Ch. III [v] The French Declaration of the Rights of Man (1789) provides similar rights. [vi] Freedom of expression is recognised under Article 19. Also see, Article 13 of the American Convention of Human Rights and Article 9 of the African Convention on Human and Peoples’ Rights. [vii] Commentaries on the Laws of England, Vol 1. [viii]  AC 1024. [ix] Came into force October 2000. [x] (1979) EHRR 737, 753-755, paras 48-49. [xi] as amended by section 1 (1) of the Obscene Publications Act 1964. [xii]  UKHL 22 [xiii]  UKHL 45,  4 ALL ER 609  3 WLR 1010 (28th October, 1999) [xiv]  UKHL 11 (21st March, 2002) [xv] Handyside v United Kingdom (1976) 1 EHRR 737, 754, para. 48.
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